Spring Symposium Contracts and Tenders

Matthew Just, IP and Legal Manager Research and Enterprise Directorate 16 April 2018

Outline

Why do we need contracts?

Whose draft/template should we use?

Key negotiated elements of a contract

Tenders

University Contract Processes

Outcomes of the Rapid Improvement Event

Signing Authority for Contracts

IPL Team

Why do we need written contracts?

Clarity over who is going to do what

Who is paying, when, and how much

Reward apportionment: Deliverables, IP, Publication rights

Risk apportionment in case things go wrong

– Termination procedures

– Limitation of potential liability

Alternative? Oral contract or exchange of emails

Which Party offers the first draft?

Commissioner of Research

Commissioner of bespoke services

Provider of routine services

Lead institution in a collaboration or consortium

Discloser of information (CDA)

Transferor of materials

York can always provide the first draft

Key Negotiated Clauses

Intellectual Property Rights

Publication Rights

Liability

Governing Law and Jurisdiction

Studentship Issues

Data Protection Issues

Intellectual Property Rights

Includes patentable inventions, copyright, confidential information, database rights

Background IP (pre-existing, outside of project)

Foreground IP (project results)

Issues over ownership and post-project access

Publication Rights

Right to publish results

Delay to protect registrable IP

Review of proposed publication to remove confidential information

Acknowledgements of funder and others

Liability Clauses

Consequential/Indirect loss exclusion

Liability cap

– Amount actually received

– Party’s share of grant

– Total project value

– Multiple of the contract price

– Multi-millions / Unlimited

Indemnity

– Broadens liability beyond normal contract principles

– May be acceptable if limited to our insurance cover

Governing Law and Jurisdiction

Whose law is used to interpret the agreement?

– England

– Belgium

How and where do we resolve disputes?

– Courts of England

– CEDR Mediation

– Arbitration

Studentships

Relationship to University regulations and policies on post graduate students

Thesis clause – Submit thesis for a degree

– External examiner confidentiality

– Deposit in library and electronic repository

– Embargo periods

Termination of contract during degree

Data Protection

Transfer and processing of personal data

General Data Protection Regulations (GDPR) – From 25 May 2018

Common situations: – Collection of personal data in research

– Studentships

– Staff secondments

Tenders

Tight time constraints

Often lengthy terms and conditions

Service requirements may not fit well with research expectations

Limited opportunity for negotiation

May be agreeing to contract when submitting bid

Common problem areas: indemnity, insurance requirements, security certification, disaster recover planning

Contract Processes

Research Contracts

Studentships

Consultancy/Services/Equipment Access

Student Exchange

NDAs/MTAs

MOUs

Rapid Improvement Event Outcomes

Communication – including research facilitators and PIs in emails to counterparties

Visibility – development of Google Sheets contract trackers maintained by RGC for each Departmental Research Facilitator

Systems – Scoping of a Contracts Management System e.g. Worktribe contracts module

Signing Authority

R-Coded Research: Kirsty Dillingham (Operations Manager, RGC) (<£1m); Rod Peet (Deputy Director of Finance) or Director of R&E (>£1m)

Studentships: Jen Wotherspoon (Deputy Director of Student Services) or Val Cotter (Director of Student Services) (through RSAT)

Other Research-related agreements: Director of R&E

NDAs, MTAs, Research MOUs: IP and Legal Manager

Student Exchange: HoD (with CGP notification)

Non-Research: Registrar (<£500k); Finance Director (>£500K)

The individual academic doesn’t have signing authority

IP and Legal Team

Contact Us

https://www.york.ac.uk/staff/research/about-re/who-to-contact-in-the-ip-and-legal-team/